How Texas Courts are Failing Families

All across Texas, families are increasingly turning to or being dragged into the court system to settle internal family disagreements. In fact, the family law caseload in Texas is so vast that such disputes now comprise more than 50 percent of all cases filed in Texas district courts, and the Texas courts are failing families.

Is this trend good for families? Is it good for children?

Those questions are complicated and multifaceted ones to which a simple answers probably don’t exist. However, Texas courts are in dire need of clear direction in one aspect of this problem. We’ll also examine the solution.

Judges View Cases in the Best Interest of the Child

In cases affecting the parent-child relationship, judges issue orders that affect the rights and responsibilities of families and parents in relation to their children. A basic overview of how judges often think regarding the parent-child relationship is something like this:

The best interests of a child are paramount.

Get all of the parties before the court and hear their opinions.

Decide what is in a child’s best interests and do it.

One important question in this analysis is, “How do you decide what is in a child’s best interest?” Surprisingly, Texas law gives virtually no direction to judges as to how this analysis should be done. Every judge is basically left to figure it out for themselves. The obvious problem with this approach is that there is not one right answer to the question.

If you put 100 different good parents in a room and asked them about their parenting philosophy, you would likely receive 100 different answers. Are 99 of those philosophies wrong and only one is right? Obviously not.

Despite their disagreements, each parent is left to make their own decisions on raising their own children because we assume that each parent knows better than anyone else what is best for their child.

So How Do You Decide What is in a Child’s Best Interests?

When this scenario plays out in the courtroom, you often end up with nothing more than a parenting dispute between one or more parents and the judge. The judge and the parents each have their own views regarding the best way to parent the child.

Since the judge is the judge, however, he or she gets to decide. This puts Texas judges in the unenviable position of spending more than 50 percent of their cases figuring out how to parent other people’s children.

Thankfully, nearly 100 years of precedent from the United States Supreme Court and the Texas Supreme Court gives judges clear direction as to how they should decide what is in the best interests of the child. Unfortunately, nobody seems to know about it.

The U.S. Supreme Court has recognized the fundamental right of parents to raise their children under the Due Process Clause of the 14th Amendment. In fact, the Supreme Court has acknowledged that this right is the “oldest of the fundamental liberty interest recognized” by the U.S. Supreme Court (see the Troxel v. Granville decision).

According to the U.S. Supreme Court, judges are required to presume that a parent is fit (meaning that they adequately care for their child) and that a fit parent’s decision is in the best interest of his or her child.

Judges are specifically prohibited from substituting their opinion for a parent’s opinion simply because they disagree. To overrule a parent, the court must either find that the parent is unfit or that his or her specific decision will significantly harm the child physically or emotionally.

Where “Best Interest of the Child” Goes Wrong

Supreme Court precedent clarifies that the opinion of a parent is prioritized over the judge’s when considering the child’s best interests. However, very few judges or attorneys in Texas know this, and judges still act as parents for virtually every child that walks into their courtroom.

The result is bad for judges, bad for families, and bad for children.

THSC believes that families, not the government, have the God-given right and responsibility to raise their children. Thankfully, the U.S. Constitution agrees.

The Solution: U.S. Constitution and the Family Unity Act

THSC has worked over the last 12 months to research 100 years of U.S. Supreme Court history on this subject and condense it into a bill named the Family Unity Act. The bill gives judges clear direction straight from the United States Supreme Court as to how they should decide what is in the best interest of a child.

Judges have it hard enough as it is. They don’t need to be parents for seven million Texas children too. THSC is currently leading a coalition of organizations in filing a brief with the Texas Attorney General’s office, who was asked in November 2018 to explain the constitutional rules on this issue.

THSC will have a full-time team on the ground in Austin working to protect Texas families and to pass the Family Unity Act during this legislative session.

Do you believe that Texas families should be raising their own children instead of the state? If so, please sign up to receive THSC legislative updates for this session starting on January 8. You can be a part of Keeping Texas Families Free!

About Jeremy Newman

Jeremy Newman became Director of Public Policy for THSC in Fall 2013. Jeremy is a home school graduate and has been involved in home schooling from an early age when his family moved to Texas from California. The third of six children, Jeremy now lives with his wife, Addi, and son, Wyatt, in Dallas where he teaches Lincoln-Douglas debates in the NCFCA, a national home school speech and debate league.

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